Jharkhand High Court
Jaihind @ Jaihin Oraon @ Jalnih Oraon vs The State Of Jharkhand on 19 February, 2024
Author: Sanjay Prasad
Bench: Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 1526 of 2007
Jaihind @ Jaihin Oraon @ Jalnih Oraon ... Appellant
-Versus-
The State of Jharkhand ... Respondent
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Ms. Omiya Anusha, Amicus Curiae
For the State : Mrs. Nehala Sharmin, Spl.P.P.
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JUDGMENT
Order No.15/ Dated: 19.02.2024
This Criminal Appeal has been filed on behalf of
the appellant challenging the judgment of conviction and
sentence dated 17.07.2007 and 19.07.2007 respectively
passed by Sri Anand Kumar Gupta, learned Additional
District & Sessions Judge-I , Gumla in S.T. No. 33 of
2005 by which learned Court below has convicted the
appellant for the offence under section 307 of I.P.C and
sentenced him to undergo R.I. for the period of seven (07)
years and pay fine of Rs. 1000/- and in default of payment
of fine to undergo S.I. for three (03) months.
However, the appellant was acquitted for the
offences under section 324 of the I.P.C. and 27 of Arms
Act.
2. The prosecution case, in brief, is that while the
informant had left ploughing his field and the appellant
came there and shot fire from pistol which hit at his left
thigh and due to which the informant fell down there. On
hearing the gunfire sound, the informant's wife and nearly
persons came there and saved the informant. The appellant
is alleged to have fled away towards Beti village. It is
further stated that at the time of occurrence Karakat River
was over flowing and for that reason there was delay in
reaching the hospital.
3. Heard learned Amicus Curiae for the
appellant and learned counsel for the State.
4.. Learned Amicus Curiae for the appellant has
submitted that the judgment and sentence passed by the
learned Court below is illegal , arbitrary and not sustainable
in eye of law. It is submitted that judgment has been passed
on the basis of conjectures and surmises. It is submitted that
the learned Court below has not properly appreciated the
evidence of the prosecution witnesses and there is vital
contradiction in the evidence of prosecution witnesses. It is
submitted that there is no eye witness of the occurrence
except the Informant. It is submitted that there is delay in
lodging the F.I.R. and as such the prosecution case is
doubtful. It is submitted that P.W. 8 is I.O. of this case and
has falsely submitted the charge-sheet under section 307 of
the I.P.C. It is submitted that P.W. 9 and P.W. 10 are Doctor
who have given contradictory statement. It is submitted that
P.W. 2 has stated that the bullet was extracted after
performing the operation and hence the case falls under
section 324 of the I.P. C. It is submitted that the appellant
has remained in custody during trial for around two (02)
years, eight (08) months and seventeen (17) days and he has
further remained custody for certain period and hence
lenient view may be taken against him and hence and
judgment and sentence passed by the learned Court below
may be set-aside and the appellant may be acquitted.
5. On the other hand, learned Special P.P. has
submitted that the impugned judgment of conviction and
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sentence passed by the learned Court below requires no
interference. It is submitted that several prosecution
witnesses have supported the prosecution case. It is
submitted that P.W. 1 is the informant of this case and who
is injured and the eyewitness of the occurrence and injured
had sustained bullet injury. It is submitted that P.W. 2 , P.W.
3, P.W. 4 , P.W. 5, P.W. 6 , P.W. 7 namely Bina Devi ,
Jalseshwar @ Jageshwar Oraon , Astar Devi , Surendra
Oraon , Pradeep Oraon and Ranjit Oraon respectively have
also supported the prosecution case. It is submitted that
P.W. 8 namely Nawal Kishore Prasad is I.O. of this case
who has also supported and corroborated the prosecution
case. It is submitted that P.W. 9 and P.W. 10 namely Dr.
Dhananjay Sumbrai and Dr. A.D.N. Prasad respectively
have also been examined and had treated the injured and
injuries and found the injury report is marked as Exhibit-4.
It is submitted that however injury not found on the vital
part of the body and injury was found in the left thigh of the
informant. It is submitted that the appellant have three (03)
criminal antecedent apart from this case and hence the
appellant is a veteran criminal and thus no illegality has
been committed by the learned Court below for convicting
him under section 307 of the I.P.C. .and the learned Court
below has taken lenient view by acquitting him under
section 27 of Arms Act and under section 324 of the I.P.C
and hence Criminal Appeal may be dismissed.
6. Perused the Lower Court Records of this case and
considered the submission of both the sides.
7. It transpires that the Informant has lodged the
F.I.R. on 22.07.2003 and the occurrence took place on
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22.07.2003 at 7:00A.M. It has been alleged by the informant
that while he left to plough the field and was taking rest near
Mango Tree, then suddenly the appellant came and fired from
the pistol causing injury in his left thigh .
8. It transpires that police, after investigation, had
submitted the charge-sheet against the appellant under
section 307/324 of the I.P.C. and 27 of Arms Act on
15.10.2004 and the then learned Chief Judicial Magistrate ,
Gumla had taken cognizance under section 307/324 of the
I.P.C. and 27 of Arms Act against the appellant .
9. After supply of police papers to the appellant,
charges were framed against the appellant under section
307/324 of the I.P.C. and 27 of Arms Act on 10.08.2005 by
Sri A.K. Gupta , learned Additional Sessions Judge-II, Gumla
to which he pleaded not guilty and claimed to be tried .
10. The prosecution in support of its case got
examined ten (10 witnesses) who are as follows:-
(i) P.W. 1 is Prem Oraon i.e. informant,
(ii) P.W. 2 is Bina Devi i.e. wife of the informant,
(iii) P.W. 3 is Jalseshwar @ Jageshwar Oraon,
(iv) P.W. 4 is Astar Devi i.e. Sister of informant,
(v) P.W.5is Surendra Oraon i.e. Cousin of the informant,
(vi) P.W.6 is Pradeep Oraon i.e. nephew of the informant,
(vii) P.W. 7 is Ranjit Oraon i.e. Cousin of the informant,
(viii) P.W. 8 is Nawal Kishore Prasad i.e. I.O.,
(ix) P.W. 9 is Dr. Dhanajay Sumbrai and
(x) P.W. 10 is Dr. A.D.N. Prasad
11. The prosecution in support of case has got
marked the following as the Exhibits which are as follows:-
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(i) Exhibit 1 is signature of the Prem Oraon of
Fardbayan,
(ii) Exhibit 2 is Fardbayan,
(iii) Exhibit 3 is Formal F.I.R. and
(iv) Exhibit -4 is injury report.
12. Thereafter the appellant was examined under
section 313 Cr.P.C. on 16.03.2007 and who has denied the
circumstances put forth before him.
13. Neither the any defence witness was examined nor
any document marked as Exhibit on behalf of the defence
i.e. the appellant.
14. Thereafter the learned Court below has convicted
the appellant for the offence under section 307 of the I.P.C.
and sentenced him to undergo R.I. for the period of seven
(07) years. However, the learned Court below has
acquitted appellant for the offences under section 324 of
the I.P.C. and 27 of Arms Act hence appreciation of the
evidence of prosecution witnesses will be necessary.
15. It transpires, P.W. 1 namely Prem Oraon is the
informant of this case who has stated during the evidence
that when he arrived near mango tree at around 7:30 a.m.
in the morning to plough the field and then the appellant
came suddenly and fired at him which hit in his left thigh
and due to which he fell down and raised alarm and then
his wife and villagers arrived there and then the appellant
Jaihind @ Jaihin Oraon @ Jalnih Oraon fled away and the
informant was taken to the police station by the villagers.
Thereafter, he was referred to Bishunpur Hospital by the
Officer -In-Charge and he was treated by the Doctor and
then the police came and recorded his
statement and he had proved his signature on the fardbyan
marked Exhibit -1.
During cross-examination he stated that
occurrence took place when he left his house and there is
house of one Pradeep Oraon near his house and the house
of the accused Jaihind @ Jaihin Oraon @ Jalnih Oraon in
East to the house of Pradeep Oraon . He had gone to the
police station on the date of occurrence and his wife and
one Astar Devi had accompanied him. He had stated that
he was wearing small half pant which had blood clot and
the police had seen but he had not handed over said pant to
the police.
16. Thus, from the scrutinizing the evidence of P.W1,
it is evident that P.W. 1 is the informant of this case and
he has stated that appellant had fired at him by the bullet
causing injury in left thigh and thereafter his wife and
other villagers arrived there and hence from the evidence
of P.W. 1, it is clear that the appellant had fired at him.
17. P.W. 2 is Bina Devi i.e. the wife of the informant
and stated that upon hearing sound of fire and alarm raised
by her husband, she went to the P.O. and other villagers
also reached there and had seen her husband in a pool of
blood and had seen the appellant Jaihind @ Jaihin Oraon
@ Jalnih Oraon fleeing away. Thereafter, they had gone
before the police who asked them to go to hospital and
then they took the informant to the hospital in Gumla and
police arrived at Sadar Hospital and enquired from her and
her husband.
During cross examination she stated that Mango
Tree is situated at the distance of 100 yards from her
house and at the time of occurrence she was doing house
hold work in her house and prior to her arrival, one
Ranjeet had arrived there, then, she had arrived. She also
stated that she has talked with the informant i.e. P.W. 1
when he regained consciousness.
18. Thus, from the scrutinizing the evidence of P.W. 2
i.e. the wife of the informant, it is the evident that P.W. 2
that she is a hearsay witness and she has not seen the
appellant firing at the informant but had seen him fleeing
away and she was at the distance of around 100 yards ,
when she heard the sound of fire, however she is a natural
witness and she has supported the prosecution case.
19. P.W. 3 Jageshwar Oraon who is a villager and
stated not while he was in tea shop, then he heard the
sound of firing and went to the place of occurrence and
saw that the informant Prem Oraon had sustained bullet
injury in the left thigh and he was full of blood and there
was a crowd and he learnt that the appellant Jaihind @
Jaihin Oraon @ Jalnih Oraon had fired at him and the
appellant was seen firstly moving away toward village
Beti with one small revolver . Thereafter the informant
was taken to his house and from there he was taken to
hospital by rickshaw.
During cross-examination, he stated that
occurrence place is situated at the distance of 150-200
steps from his tea shop which was open and there is one
room for keeping the material. He also stated that
prior to his arrival Bina Devi i.e. P.W. 2, Astar Devi i.e.
P.W. 4 and Pradeep Oraon also arrived there but he could
not say the name of other persons. He claimed that he
had seen the appellant Jaihind @ Jaihin Oraon @ Jalnih
Oraon was fleeing away in front of his shop but he had
not seen what was kept in the cloth.
20. Thus, from the scrutinizing the evidence of
P.W.3 , it is the evident that P.W. 3 is a hearsay witness
and although he claimed to have seen the appellant
fleeing away in front his shop, hence, the evidence of
P.W. 3 is like a hearsay witness.
21. P.W. 4 is Astar Devi, she has stated during
her evidence that while she was cooking meal, then, she
heard the sound of fire and went near mango tree and had
seen the informant i.e. P.W. 1 Prem Oraon sustained
injury in his left thigh and had seen the appellant Jaihind
@ Jaihin Oraon @ Jalnih Oraon fleeing with the pistol
and fled away toward Beti village. She also stated that the
appellant Jaihind @ Jaihin Oraon @ Jalnih Oraon is a
criminal.
During cross-examination, she stated that on
hearing sound of gun fire, she was at residence and her
house is situated at the distance of 50 steps and upon her
arrival she has seen the wife of the informant Prem Oraon
and there after she alongwith Pradeep, Ranjeet and
Surendra also arrived there. She also stated that she not
talked with the informant. She also admitted that she is
elder sister of Prem Oraon and the informant was taken
to the hospital by rickshaw .
22. Thus, from the scrutinizing the evidence of
P.W.4, it is the evident that the P.W. 4 is the elder sister of
the informant and although she had arrived after arrival of
wife of the informant and then she had arrived. Thus
P.W.4 has supported the Prosecution case.
23. P.W. 5 Surendra Oraon has stated during his
evidence that he was working in the Bari at around 7:00
A.M., then he heard the sound of fire and went near the
field of Jageshwar and there he had seen the informant
Prem Oraon in injured condition who had sustained bullet
injury in his left thigh . He also stated that she had seen
the appellant fleeing away toward Beti village who was
having arm with pistol, thereafter firstly Bina Devi i.e.
P.W. 2 arrived there and then he, Ranjeet and Pradeep also
arrived there and he learnt from the informant that the
appellant had fired at him .
During cross-examination he stated that he Bari is
situated at the distance of 200 yards from the place of
occurrence and he had seen the appellant fleeing away at
the distance of 25-30 feet. He further stated that 30-35
persons assemble there after his arrival but he cannot say
the name of any person. He also admitted that he was
cousin brother of the informant i.e Prem Oroan.
Thus, from scrutinizing the evidence of P.W.5, it
is the evident that P.W. 5 is also a hearsay witness.
24. P.W.6 is Pradeep Oraon, who has stated upon
hearing sound of gun fire sound he came out from his
house and had seen that the informant had sustained
bullet injury in his left thigh and he had also seen the
appellant with the pistol and then the informant become
unconscious then he was taken Sadar Hospital Bishunpur,
then he returned back to his house. Upon gaining
consciousness the informant Prem Oraon informed that
the appellant assaulted him with the fire arm.
During cross-examination he stated that his
house is situated at the distance of 100 steps from the
Bari of Jageshwar and Bina Devi had arrived prior to his
arrival then he arrived there and there after six (06)
persons also came. He also stated that the informant Prem
Oraon was also unconscious when he arrived at the P.O.
and then they taken the informant to the Hospital and
returned his home. He also admitted that informant Prem
Oraon is own nephew.
25. Thus, from scrutinizing the evidence of P.W.6,
it is the evident that P.W. 6 that he is own uncle of the
informant and he is hearsay witness but he had stated that
the informant was unconscious, then he had arrived at the
place of occurrence and thus, P.W.6 has contradicted
evidence of P.W.1 informant, P.W.2 Bina Devi wife of the
informant, P.W.4 Astar Devi is sister of the informant thus
the evidence of P.W.6 is not reliable.
26. P.W.7 is Ranjeet Oraon who has stated during
his evidence that upon hearing gun sound of fire, he came
out his residence and had seen the informant in the
injured condition, near the mango tree and had seen the
appellant feeing away with having small arm in his hand
but the informant was conscious and he was taken to
Bishunpur Hospital by rickshaw. Thereafter, after one
week who disclosed him that Jaihind @ Jaihin Oraon @
Jalnih Oraon the appellant had assaulted him.
During cross examination he stated that the
villagers Jageshwar P.W.3, Pradeep Oraon P.W. 5, Aster
P.W.6 had arrived earlier prior to his arrival. He also
admitted that he happens to be brother of the informant.
Thus, from the scrutinizing the evidence of
P.W.7, it is the evident that P.W. 7 is also a hearsay
witness and an interested witness.
27. P.W.8 is Nawal Kishore Prasad i.e, I .O. of
this case who has stated during this evidence that the
informant in injured condition alongwith his wife and
other villagers came to the police station at 5. p.m. in the
evening on 22.07.2003 and after verifying his injury he
was send to Primary Health Centre, Bisunpur, with
Chowkidar Bandi Oraon, then after making entry of
Sanha No. 373, he alongwith S.I. G.Ahmad went to P.S.
Bisunpur and recorded fardbyan of the informant in his
writing and also taken the thumb impression of Bina Devi
P.W. 2 and he proved the fardbyan marked as Exhibit-1.
He further proved the endorsement on FIR as Exhibit-2
and he also proved formal FIR marked as Exhibit-3.
Thereafter, he took over the investigation of the
case himself and during investigation he had recorded the
statement of Bina Devi and arrived at the P.O. at 10:45
a.m. on 23.07.2003 and inspected the P.O. He also
described the boundary which reveals the existence of one
old Mango tree. Thereafter he had recorded the statements
of witnesses, Pradeep Oraon (P.W. 6), Ranjeet Oraon
(P.W. 7), Jageshwar Oraon (P.W. 3) , Surendra Oraon
(P.W. 5) and Astar Devi (P.W. 4).
He also found that the appellant had got three (03)
criminal antecedent apart from this case, then he obtained
the injury report. Thereafter he submitted the charge-sheet
for the offence under section 307, 324 of the I.P.C. and
under section 27 of the Arms Act.
28. During cross-examination he admitted that he
had recorded the statement of witnesses Jageshwar Oraon
P.W. 3, Surendra Oraon P.W. 5 and Astar Devi P.W. 4
separately but has mentioned in one page of the case
diary.
He denied for submitting the charge-sheet
under the instruction of Senior Officer.
29. Thus, from the scrutinizing the evidence of
P.W.8, it is the evident that P.W. 8 is I.O. of this case.
Apart from stating he recorded the statement of the
informant and also recorded the statement of prosecution
witnesses, he stated nothing and except finding with the
criminal antecedent of the appellant, he had neither seized
the blood in place of occurrence nor taken the blood
stained cloth of the informant. However, P.W. 8 has
corroborated the prosecution case.
30. P.W. 9 is Dr. Dhananjay Sumbrai who has
identified the injury report of the informant Prem Oraon
which was prepared by the Doctor Paras Nath Mahto in
his writing and signature which was marked as Exhibit- 4
and has stated that as per injury report following injuries
were found on the person of the injured:-
"One Elliptical penetrating wound on Left thigh. Size
bearing 2"x3/4" x several inches (exact depth could not
ascertained because of impounding bleeding)
Time- Within 24 hours.
Mode- By some hard pointed substance
Nature- Opinion reserved till report comes"
During cross examination he admitted that the
injury report was not prepared during his presence. He
also admitted that such injury was possible due to fall on
a pointed rod.
31. Thus, from scrutinizing the evidence of P.W.9,
it is the evident that P.W. 9 has simply proved the injury
report prepared by one another Doctor Paras Nath Mahto.
He had also stated that the opinion of injury was reserved.
Thus the evidence of P.W. 9 shows that he had not
prepared the injury report.
32. P.W. 10 is A.D.N. Prasad who found the
following of the person of the informant as follows:-
On 22.07.2003 while I was posted as C.A.S at
Sadar Hospital, Gumla. On that day, I admitted one Prem Oraon,
35 years, male, S/o Bolwa Oraon of Vill. Chatakpur, P.S.
Bishnupur vide Registration No. 1399/E who has sustained
gunshot injury on left thigh after proper investigation bullet was
extracted from the wound after operation. The Operation was
performed on 23.07.2003. The patient was discharged from the
hospital on 31.07.2003 giving him necessary instruction and
medication.
The discharge certificate of Sadar Hospital, Gumla
bears his handwriting and signature, marked Exhibit- 4/1.
During cross-examination he admitted that
there is no initial on the cutting as it was not required.
He had also not mentioned the diameter of the gun of
injury in his certificate.
33. Thus, from the scrutinizing the evidence of
P.W.10, it is the evident that P.W. 10 that P.W. 10 is a
Doctor, who had prepared the injury report and has
supported the injury of the informant on his person and
has extracted the bullet from the left thigh of the
informant.
34. It transpires from the record the Exhibit 4 is the
injury report of injured i.e. the informant Prem Oraon
whereas Exhibit 4/1 is the discharge ticket of Sadar
Hospital, Gumla .
35. Exhibit 4 reveals that the appellant was
examined by the injured by Dr. P.N. Mahto showing
Elliptical penetrating wound on left thigh of 2"and ¾"
into several inches and opinion was reserved till X-ray
report, however it does not disclose the presence of
bullet in thigh and no X-ray plate was produced during
the trial.
36. Exhibit 4/1 is discharge ticket issued by
Sadar Hospital Gumla on 31.07.2003 showing the
admission of the informant 22.07.2003 and date of
discharge on 31.07.2003 and bullet was extracted on
23.07.2003.
37. From perusal of the evidence of P.W. 1
namely Prem Oraon i.e. the informant it is clear that he
had supported the prosecution case that the appellant
had fired at him in the left thigh and arrival of wife and
villagers, the appellant fled away.
38. It transpires from perusal of the evidence of
P.W. 9 namely Dr. Dhanajay Sumbrai has proved the
injury report prepared in the writing of Dr. Parash Nath
Mahto. He admitted during his cross examination that
the injury report was not prepared before his presence
and thus, the injury report marked as Exhibit-4 has not
been proved by the Doctor who had examined and
prepared the injury report of the informant.
39. It transpires that P.W. 10 namely Dr. A.D.N.
Prasad has stated during his evidence that he had
admitted the informant Prem Oraon on 22.07.2003 at
Sadar Hospital Gumla who has sustained injury on left
thigh and the bullet was extracted from the wound
after operation and operation was performed on
23.07.2003 and he was discharged on 31.07.2003,
Exhibit 4/1 shows that the operation was performed on
23.07.2003. Thus, Exhibit-4/1 reveals that the bullet was
extracted from the left thigh of the informant.
40. It transpires that the P.W. 2, P.W. 3, P.W. 4,
P.W. 5 namely Bina Devi, Jalseshwar @ Jageshwar
Oraon, Astar Devi, and Surendra Oraon respectively
have fully supported the prosecution case.
41. Although the blood stained clothes of the
informant were neither seized by the police nor sent for
FSL examination, but the prosecution has proved its case
that firing was made by the appellant upon the left thigh
of the informant.
43. It transpires that the informant had sustained
injury at his left thigh and as such the conviction of the
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appellant can be altered from under section 307 I.P.C.
to 308 I.P.C.
44. It has been held in the case of Bhagwan
Singh and State of Uttarakhand reported in (2020 )
and para 19 as follows:-
"Para 18:- Resultantly, we hold that the appellant had
the requisite knowledge essential for constituting the offence of
: culpable homicide" under section 299 and punishable under
section 304 part 1 I.P.C. . He is thus held guilty under section
304 Part 2 and not under section 302 of the I.P.C. . On the
same analogy, the appellant is liable to be punished for "
attempt to commit culpable homicide" not amounting to murder
under section 308, in place of section 307 I.P.C. for the injuries
caused to the other three victims. To this extent, the appellant's
contentions merit acceptance."
"Para 19:- For the above stated reasons, the appeal is allowed
in part. The conviction of the appellant under section 302 I.P.C.
is altered to section 308 I.P.C. As a necessary corollary, the
sentence of life imprisonment awarded to the appellant for
committing the offence under section 302 I.P.C. is reduced to
10 years' rigorous imprisonment and the sentence awarded to
him under section 307 I.P.C. is substituted with section 308
I.P.C. , without any alteration in the fine imposed by the trial
Court ."
45. In view of the judgment of Hon'ble Supreme
Court report in Bhagwan Singh and State of
Uttarakhand reported in (2020 ) 14 SCC Supreme
Court the sentence of the appellant is altered , under
section 307 of the I. P.C to under section 308 of the
I.P.C.
46. As the appellant remained in jail from around
two (02) years and eight (08) months and he also
remained in custody for certain period also and as such
the period during which the appellant Jaihind @ Jaihin
Oraon @ Jalnih Oraon remained in jail shall be the
period of sentence.
47. Thus, the Criminal Appeal(S.J.) No. 1526 of
2007 is dismissed by altering the conviction of the
appellant Jaihind @ Jaihin Oraon @ Jalnih Oraon
under section 307 of I.P.C to under section 308 of the
I.P.C and by modifying the sentence of the appellant to
the effect that the period during which the appellant
namely Jaihind @ Jaihin Oraon @ Jalnih Oraon
remained in jail, shall be period of sentence and the
appellant namely Jaihind @ Jaihin Oraon @ Jalnih
Oraon is discharged from the liabilities of his bail
bonds and he is directed to be released forthwith if not
wanted in any other case.
Office is directed to issue release order at once.
48. Let a copy of this order to be send to the
learned Court below through "FAX" at once.
(Sanjay Prasad, J.)
Bibha/
